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JUDICIAL PROCEDURE
[2] This is an application for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act (IRPA) of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (Appeal Division) which, on April 20, 2004, wherein the Appeal Division upheld a decision of the Adjudication Division to issue a deportation order against the Applicant pursuant to subsection 32(2) of the Immigration Act.
BACKGROUND
[3] The Applicant, Mr. Thavendrarajah Krishnan, was born in Sri Lanka in 1978. He came to Canada in 1992 and was found to be a refugee. He was granted permanent resident status on July 25, 1995. He is not a Canadian citizen.
[4] Between July 13, 1998 and April 27, 2001, 15 convictions were registered against Mr. Krishnan. His convictions include fraud, forgery, assault, possession of property obtained by crime, unlawfully entering a dwelling house and obstructing a peace officer.
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[5] On August 20, 1999, Mr. Krishnan was convicted of possession of property of a value exceeding five thousand dollars contrary to section 354 of the Criminal Code. Despite the fact that Mr. Krishnan received a sentence of seven days in jail, he faced a possible sentence of term not exceeding ten years.
[6] Subparagraph 27(1)(d) of the Act makes reference to a permanent resident who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of five years or more may be imposed. On January 17, 2002, Mr. Krishnan was ordered deported pursuant to subsection 32(2) of the Act, which reads:
| 32. (2) Where an adjudicator decides that a person who is the subject of an inquiry is a permanent resident described in subsection 27(1), the adjudicator shall, subject to subsections (2.1) and 32.1(2), make a deportation order against that person. |
32. (2) S'il conclut que l'intéressé est un résident permanent se trouvant dans l'une des situations visées au paragraphe 27(1), l'arbitre, sous réserve des paragraphes (2.1) et 32.1(2), prend une mesure d'expulsion contre lui. |
[7] On January 22, 2002, Mr. Krishnan was ordered released from detention under certain conditions.
[8] Mr. Krishnan appealed the decision to the Board pursuant to subsection 70(1) of the Act. He did not contest the legal validity of the deportation order but rather argued that his removal should be stayed having regard to all the circumstances of the case pursuant to paragraph 70(1)(b) of the Act, which reads:
| 70. (1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
...
(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
|
70. (1) Sous réserve des paragraphes (4) et (5), les résidents permanents et les
titulaires de permis de retour en cours de validité et conformes aux règlements peuvent
faire appel devant la section d'appel d'une mesure de renvoi ou de renvoi conditionnel en
invoquant les moyens suivants :
[...]
b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada.
|
[9] The decision of the Appeal Division of April 20, 2004 is the decision under review before this Court.
DECISION UNDER REVIEW
[10] The Appeal Division considered the principles of Chieu v. Canada (Minister of Citizenship and Immigration) and of Ribic v. Canada(Minister of Employment and Immigration). In Chieu, supra, the Supreme Court of Canada affirmed that the factors set out in Ribic, supra, are the factors to be applied in such appeals. Moreover, the Supreme Court confirmed that the onus is on the appellant to show exceptional reasons why he should not be removed from Canada. The Court stated at paragraph 90:
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The factors set out in Ribic, supra, remain the proper ones for the I.A.D. to consider during an appeal under s. 70(1)(b). On such an appeal, the onus is on the individual facing the removal to establish exceptional reasons as to why they should be allowed to remain in Canada.
[11] The factors set out in Ribic, supra (which were considered by the Appeal Division in its reasons) are as follows:
(a) the seriousness of the offence or offences leading to the deportation;
(b) the possibility of rehabilitation or in the alternative, the circumstances surrounding the failure to meet the conditions of admission which led to the deportation order;
(c) the length of time spent in Canada and the degree to which the appellant is established;
(d) family in Canada and the dislocation to that family that deportation of the appellant would cause;
(e) the support available for the appellant not only within the family but also within the community and the degree of hardship that would be caused to the appellant by his return to his country of nationality; and
(f) any other relevant factors particular to the case.
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[12] Two considerations were of primary importance in the determination of the appeal, namely the remorsefulness of Mr. Krishnan and the possibility of his rehabilitation. The Appeal Division's determination with respect to Mr. Krishnan's prospects for rehabilitation focused on his alleged ties to a Tamil streetgang known as the A.K. Kannon gang. The Board determined that Mr. Krishnan "was and continues to be a member of the A.K. Kannon gang" and that there was a "strong likelihood that the appellant will re-offend and that the possibility of rehabilitation is poor".
[13] In making the decision to deny the appeal, the Appeal Division considered the following factors:
(a) The length of time the Applicant has been in Canada.
(b) The fact that his economic establishment in Canada is practically non-existent (he has no significant assets, has worked on and off at a variety of non-skilled jobs, while not incarcerated, has lived largely on the proceeds of social assistance, odd jobs and handouts);
(c) The fact that the Applicant has a grade 11 education and no specific training in a trade or profession;
(d) The fact that the Applicant has had a number of domiciles but has lived largely with his brother;
(e) The fact that the Applicant claimed to be involved in a close relationship with Elilarasy Anandarajah;
(f) The Applicant's brother is committed to providing the Applicant with financial and emotional support;
(g) The Applicant's mother and sister, while in Canada, chose not to testify at the hearing and offer their support;
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(h) The only child to be affected by the decision was the Applicant's nephew and that no evidence was led that the child was dependent on the Applicant in any way;
(i) The Applicant's family are not financially dependent on the Applicant;
(j) although the Applicant's family will miss the Applicant if he is removed from Canada, they will not experience undue hardship;
(k) The Applicant's criminal convictions are serious. His criminality is recidivistic, wonton and reckless in nature;
(l) The Applicant has not been convicted of an offence in the past 2 ½ years;
(m) The Applicant's testimony was inconsistent, self-serving, implausible and not credible;
(n) The Applicant lacked remorse for his criminal behaviour and downplayed his involvement;
(o) The Applicant did not appreciate or acknowledge the ramifications of his crimes;
(p) The Applicant showed an appalling unwillingness to take responsibility for his actions. In testifying about his criminal convictions, the Applicant gave virtually the same explanation - he had done nothing wrong; his criminal participations was actually that of an innocent observer; his involvement was actually minor and that he could not recall what actually happened;
(q) The Applicant's testimony indicated that he is willing to say or do anything in order to stay in Canada. His versions of events leading to his criminal convictions were simply not credible. The Board preferred the version of events outlined in the various police occurrence reports;
(r) The Applicant had been, and from the evidence presented, continued to be a member of the A.K. Kannan gang. There was extremely strong evidence that he had previously participated in gang activities, had committed criminal offences with gang members and associated himself with gang members.
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(s) The Board concluded that the Applicant had not relinquished his ties to this gang. First, the Board noted that the Applicant refused to even acknowledge the possibility that some of his associates may be A.K. Kannan gang members. Second, the Applicant's general lack of credibility and his willingness to lie to police and immigration officials did not support his claim that he ceased his gang activity. For instance, when he did not appear for an immigration interview he said it was because he lost his cell phone. When a female immigration officer called his number, it was picked up by his "brother" who rudely asked what the caller wanted and then called her a "bitch" before hanging up. No satisfactory evidence was provided for why his "brother" would have had access to the Applicant's telephone while he did not. Moreover, the Applicant told immigration officials that he did not attend at an interview because persons unknown to him were trying to kill him. He then said that he lied and that he had said someone was trying to kill him so that he would not be charged with a breach. The Board found that the Applicant would engage in lying if and when it is convenient to him;
(t) The Board found on a balance of probabilities that there was a likelihood that the Applicant would re-offend and that the possibility of rehabilitation was poor, taking into consideration the fact that he had not re-offended for the last few years;
(u) The Board found that while removal from Canada would create some hardship for the Applicant it would not be undue;
(v) The Board considered the Applicant's leg injury and the evidence provided with respect to his medical condition;
(w) The Board considered the issue of the country conditions where the Applicant would be sent but, following the Supreme Court's decision in Chieu, noted that an assessment of those conditions was not possible as the country of likely removal had not been established;
(x) The Board considered granting the Applicant a stay with conditions attached but declined to do so given his history of re-offending while on probation, his convictions for failing to comply with a probation order and failing to comply with a recognizance;
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(y) The Board considered the evidence of the Applicant's brother that he and his family would look after him and take steps to ensure his rehabilitation. The Board noted that the past efforts of the family had not been successful in steering the Applicant clear of criminality. The Applicant in fact testified that he had not heeded the good advice of his family in the past and no satisfactory evidence was provided as to why this is expected to change in the future. The Applicant's brother also indicated that he knew little about the Applicant's criminality;
(z) The Board considered case law that instructs the Appeal Division to exercise its discretion consistently with the objectives of the Immigration Act, 1976, including the protection of the safety and good order of Canada.
[14] The Appeal Division concluded that Mr. Krishnan did not show on a balance of probabilities that he should not be removed from Canada and dismissed the appeal.
ISSUES
[15] 1. Did the Board err in determining that the Applicant had previously been a member of a gang or continued to be a member of a gang?
2. Did the Board ignore or misstate evidence when it stated that the Applicant had not shown remorse?
3. Did the Board ignore evidence in finding that the Applicant posed a danger to the public and was likely to re-offend?
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ANALYSIS
Standard of review
[16] It is well settled that if the discretion of the Appeal Division has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no Court is entitled to interfere even if the Court had the discretion and might have exercised it otherwise. (Boulis v. Canada(Minister of Manpower & Immigration); Jessani v. Canada; Grewal v. Canada (Minister of Citizenship and Immigration); Vong v. Canada(Minister of Citizenship and Immigration)).
[17] Furthermore, questions of fact and questions relating to the weight of evidence by the Appeal Division should be upheld unless they are patently unreasonable (Tse v. Canada (Secretary of State)).
[18] Mr. Krishnan, who has already been found to be inadmissible and who is the subject of a deportation order, bears the onus of establishing that, having regard to all of the circumstances in the case, he should not be removed from Canada (Chieu).
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1. Did the Board err in determining that the Applicant had previously been a member of a gang or continued to be a member of a gang?
[19] The issue before the Appeal Division was not the definition of a criminal gang for the purpose of paragraph 19(1)(c.2) of the Act (now subsection 37(1) of the Immigration and Refugee Protection Act). Rather, the issue was whether Mr. Krishnan had shown that exceptional reasons existed as to why he should be allowed to stay in Canada. Therefore, the broader test set out in Chieu, supra, was the appropriate one and it was correctly applied in this case. The Appeal Division considered all of the relevant circumstances, including Mr. Krishnan's gang activity, in concluding that exceptional reasons did not exist to allow him to stay in Canada.
[20] It was open to the Appeal Division to find reasonable grounds to believe that Mr. Krishnan had been a member of the A.K. Kannon gang and involved in criminal gang activity. It was open to the Appeal Division to find that he had not severed all ties to this gang, given the fact that he refused to even admit the possibility that some of his previous associates were gang members; and given that his evidence regarding many aspects of his criminal activity was untrustworthy and not credible. Based on the evidence provided, including Mr. Krishnan's criminal history, his refusal to take responsibility for his actions and his willingness to lie when convenient, the Appeal Division did not accept that his criminal ties no longer existed. This finding was open to the Appeal Division.
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[21] More specifically, although Mr. Krishnan denied that the August 20, 1999 incident, in which he was involved, was gang related, the Appeal Division found his testimony insincere and found his version of what occurred suspect. Also, Mr. Krishnan admitted that he participated in the April 1999 incidents involving Kandeepan Poopalasingham (a known member of the gang) "to be accepted as a friend and to look 'cool' in the eyes of onlookers". Further, Mr. Krishnan's stated reason for getting
involved in the fight in April - to show that he was a leader so he would be respected - is consistent with his establishing himself in the gang by demonstrating a penchant for violence or a willingness to participate in the violence of the gang. Officer Ragell testified that this show of penchant for violence would have helped to establish Mr. Krishnan as a core member of the gang.
[22] The Appeal Division found the testimony of Officer Ragell to be credible and trustworthy and preferred it to that of Mr. Krishnan. This finding was open to the Appeal Division as the trier of fact (Veerasingam v. Canada(Minister of Citizenship and Immigration)). In order to appreciate Officer Ragell's testimony, it must be read as a whole. When so read, it supports the conclusion of the Appeal Division that Mr. Krishnan had been a core member and continued to be a member at the time of the hearing. For example, although Mr. Krishnan argues that Officer Ragell conceded that Mr. Krishnan had not had active involvement with the gang since his last conviction in April 2001, Officer Ragell indicated that the active involvement of many of the members suddenly
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decreased in late 2001 as a result of the arrests associated with Project 1050. However, Officer Ragell testified that Mr. Krishnan continued to remain in the same area and continued to associate with the same people, thereby indicating a continued link to the gang. In the context of Officer Ragell's testimony that membership in this gang was established by association, the finding that Mr. Krishnan continued to be a member was open to the Appeal Division.
[23] In response to Mr. Krishnan's submissions with respect to the escape lawful custody incident, the Court notes that Officer Ragell testified that complete information may not have been available to the prosecutor at the time the plea was taken; rather, inaccurate information was deliberately put before the Court. Mr. Krishnan cannot complain where he has derived the benefit; had the information - that this incident was gang related - been available, this might have adversely affected the sentence imposed.
[24] The Appeal Division considered the documentary evidence indicating that Mr. Krishnan was a member of the gang; however, the Appeal Division did not base its finding that Mr. Krishnan was a member of the gang solely on the basis of the documentary evidence as "corroborated" by Officer Ragell. Rather, the Appeal Division considered Mr. Krishnan's lack of trustworthy and credible testimony in assessing his criminal involvement. It was open to the Appeal Division to consider Mr. Krishnan's oral testimony together with the documentary evidence it considered trustworthy and reliable in assessing this factor.
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2. Did the Board ignore or misstate evidence when it stated that the Applicant had not shown remorse?
[25] Mr. Krishnan has not demonstrated that the Appeal Division erred in assessing Mr. Krishnan's remorse for the numerous crimes he committed. The Appeal Division gave many
examples to illustrate why it did not accept that Mr. Krishnan was remorseful, including the fact that he continuously downplayed his involvement and culpability in the crimes he committed. These findings were open to the Appeal Division on the evidence. The "errors" alleged by Mr. Krishnan related not to his remorse, but rather to what he claims were the reasons as to why he participated in the criminal activity. The evidence contained in Mr. Krishnan's affidavit with respect to remorse has been considered by the Appeal Division. That it came to a conclusion unfavourable to Mr. Krishnan on this point, does not, without more substantial grounds, allow for a judicial review application.
3. Did the Board ignore evidence in finding that the Applicant posed a danger to the public and was likely to re-offend?
[26] Mr. Krishnan argues that the Appeal Division ignored evidence that for over two years, he had met the exact same strict terms and conditions that the Appeal Board considered he could not subsequently meet; also he argued that he had not been convicted or charged with a criminal offence in the last two and a half years.
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[27] The Court finds that it was open to the Appeal Division to conclude that Mr. Krishnan posed a danger to the public and was likely to re-offend in light of the evidence that Mr. Krishnan had a history of failure to comply with probation and recognizance, was not adverse to lying to avoid
detection for these failures and in light of the testimony of Officer Ragell that Mr. Krishnan continued to associate with people who were members of the gang with criminal records.
CONCLUSION
[28] In summary, the Appeal Division properly considered all of the evidence before it and, upon assessing and balancing all of the circumstances of the case, determined that Mr. Krishnan's appeal should not succeed. The reasons of the Appeal reflect the fact that all of the relevant factors, both favouring and mitigating against Mr. Krishnan, were adequately considered by the Appeal Division. Mr. Krishnan's contentions amount to a disagreement with respect to the weight which the Appeal Division afforded the evidence, and for this reason, Mr. Krishnan cannot succeed. The issue of weight of evidence is within the jurisdiction of the Appeal Division as the trier of fact (Suresh v. Canada, Legault v. Canada(Minister of Citizenship and Immigration)).
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[29] The Appeal Division gave considerable weight to the seriousness of the crimes and the lack of remorse exhibited by Mr. Krishnan. In assessing his chance of rehabilitation, the Appeal Division noted his refusal to take responsibility for his past actions and the excuses he provided for his criminal activity. The Appeal Division further considered Mr. Krishnan's reluctance to
admit his participation in a criminal gang and to refuse to acknowledge the possibility that some of his associates are gang members. The Appeal Division also gave weight to the fact that, while his brother testified he would help Mr. Krishnan not to commit further crime, he had been unable to
stop this behaviour in the past. Furthermore, the Appeal Division considered Mr. Krishnan's lack of establishment in Canada (financial/employment/residence), as well as the fact that, while some family members would be sorry to see him leave the country, his family members were not dependant on him. Given these facts, the Appeal Division's conclusion that Mr. Krishnan had not demonstrated why he should not be removed from Canada was reasonable. The Appeal Division did not base its conclusion on one factor alone, but rather adequately assessed all of the circumstances of the case.
[30] For these reasons, the Court answers the three questions in the negative. Consequently, this application for judicial review is dismissed.
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ORDER
THIS COURT ORDERS that
1. The application for judicial review be dismissed.
2. No question is certified.
"Michel M.J. Shore"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4271-04
STYLE OF CAUSE: THAVENDRARAJAH KRISHNAN
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 14, 2005
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Shore
DATED: April 18, 2005
APPEARANCES:
Mr. David Orman FOR THE APPLICANT
Ms. Alexis Singer FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. David Orman FOR THE APPLICANT
Toronto, Ontario
JOHN H. SIMS Q.C. FOR THE RESPONDENT
Deputy Minister of Justice and
Deputy Attorney General
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